Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-02-03
THE oouRr orlAPPEALs.


G0.'n liability for Comnty raxos.
The court OF appeals was been In session
al Dover on Wednesday, Thursday and Fri
day of last week, hearing argument In u
case Ut considerable local Importance, in
vClving the right Of the levy court Of New
Castle county to levy and cause to be col
lected county taxes on real estate OF the p,
W. a b. Railroad Company lying within the
county limits. The title OF the case,
abridged, Is: Patrick Neary, county tax
collector for the Second Wilmington dis
trict, appellant, va. the p, W. d ,. Railroad
Company, respondent; the appeal being to
dissolve an Injunction laid by Chancellor
salisbury, restraining the collection of
such taxes. Chief Justice Oomegys and
Associate Judges Wootten, Houston and
Grubb on the bench; John Fl. Rodney and
+. @. Bradford, Esqs., counsel for Neary /;
George v. Massey, ESQ, counsel for the
railroad company.
The case involves two main questions,
stated as follows:
l. Assuming that the real estate OF the
corporation respondent II ltnble ~ Hssess-
| ment and taxation under III, general laws
regulating County taxttioIi, In the absence
| of any speciiis statute or statutes exempt
Ing the same tlleretrom, Is there any such
| statute or exemption
2. Ii there Is no such statute, Is there any
| general rule or principle Of law exempting
either the whole or any part OF the real
estate of the corporation respondent from
such taxation2
Counsel for appellant set forth that by
| act OF April 18th, 1873 the General Assem-.
bly, authorized the State treasurer to accept
| from the railroad company the annual sum
of $27, 000, payable quarterly, to be In lieu Of
| all State taxes falling due from the COM
| pany, except the per capita tax Of 10 cents on
| each passenger carried that this act of 1873
created in no sense contract between the
State and the railroad, but merely sus-
| pended the action OF the tax imposing acts
| Of chapter 7, Revised Code, and Of 1869,
| during the years In which the company
might elect to commute by the payment
| Of S27,0C0. (Ohapter 4, Revised Code,
imposed tax Of one-quarter Of one per
cent per aDnum upon the capital Of
| the company; the act of 1869 taxed the net
earnings, rolling stock and actual cash
value Of capital stock.) Through alleged
am biguity OF expression, the act OF 1873 is
| held by respondent to contemplate the eom-
mutation OF all taxes, state, county or
municipal, except tho specifically exempted
| per capita tax, The appellant contends
that the act clearly contemplates state taxes
| only, and that 1t has no reference whatever
to county or municipal taxes. Both the
acts the operation OF which may be sus.
| pended by Communication related exclusively
| to state taxation In contradistinction of
county taxation, and neither Of them i'm
/ posed any tax on the real estate Of the COM
| pany. Further, 1t Is q ell-established prin-
| ciple of the Interpretation Of laws exempt
| ing from taxation, that any doubts
as to the scope Of the enactments should be
resolved In favor Of the taxing power, as
| the surrender OF that power should be by
| clear. unambiguous terms, admitting OF no
| reasonable construction consistent with the
| reservation OF the power. Besides, the law
| under which real estate i5 taxed for county
purposes (and there Is no connection be-
| tween the franchise and the road bed, or
| any part OF the real estate, which can
| operate as bar to such taxation)
| The law does not even provide
| that real estate shall be taxed. 1t author
| lies taxation, but imposes no tax. 1t is the
| levy court that does the latter. The city
OF Wilmington has the right under its char
| ter to levy city taxes; but such taxes are
| imposed, not by the charter, but by the City
| Council II the construction commended for
| by respondent were proper one, 1t would
| empower the company, at Its mere election,
to deprive county Of a portion Of Its just
revenues, and would furthermore, from the
uncertainty whether that election would be
/ exercised, breed much confusion; as the
| levy court would never know whether OF
not to impose taxation IN any one year, Q,
| whether or not 1t could reply upon an
revenue from this source. That the rond
| bed is taxable real estate Is esta1li she'd b,
/ many adjudieated cases.
| It is therefore submitted that neither th'
| act of l873,nor any general rule or principle
| Of law, relieves the whole or any portion Of
/ the real estate used by the railroad COM
pany from county taxation, and that the
| decree Of the court below, In go far as II en-
| Joined the collection Of county taxes against
| any portion Of said real estate, should be
| reversed.
The sum directly involved In this specific
case, the collection of which was ebjoined ,is
only about $500; but the amount OF tax
| levied by the county on railroads, which
| will be affected by the decision OF the court
| In this case, is about 81 500 per Rnnum.
| The p, W. Il B. railroads have refused the
| payment Of county taxes levied both on
| real estate Gear shops, stations, freight
houses, Se.,) and road bed. The other rail-
| roads, which are also empowered to COM
mute for State taxes, have declined to pay
county taxes on their road beds, but have
| paid such taxes OIL their other real estate.
The court reserves its decision.
/